Philip Cooper, in his excellent review of unilateral devices a decade or so ago, noted that when elites begin to focus on the way the president uses a unilateral device, the president will shift to a different device that accomplishes the exact same thing but does not come with the same public scrutiny baggage. In the 1990s there was a lot of scrutiny of the executive order, for example, which Clinton was using in order to accomplish policy goals shut out by the Republican Congress. So Clinton simply shifted to a different device, or "tool" as Cooper called it, such as the "memoranda" to take the place of the executive order. Different device, same effect. What was different was public scrutiny.
A unilateral device, as you readers well know, is something that the president uses to accomplish political goals. Their value is they allow the president to circumvent the Congress. Examples of unilateral devices: the executive order, memoranda, the presidential proclamation, the executive agreement, and the signing statement.
Today's New York Times has an article about the signing statement and its use by the Obama administration that may confirm Cooper's argument.
The article notes that the Obama administration has laid off using the constitutional signing statement since last summer despite signing bills that should have elicited challenges. If you recall, Obama set off a firestorm in the Congress last summer when he challenged provisions of law dealing with US participation in international institutions despite earlier compromising with the Congress to allow the prohibitions to go forward. Obama caught a left-right series of punches from Democrats and Republicans upset with the challenges. After that, Obama issued no more constitutional signing statements (though he has issued rhetorical signing statements since). Yet, as the article notes, Obama signed legislation last month that contained the exact same prohibitions but did not issue a constitutional signing statement challenge the provisions. Instead the administration argues there is no need to repeat the challenge because of their previous challenges, backed up with an OLC opinion claiming the right to ignore the provisions. But that opinion was for a different bill, which does not seem to bother the administration.
Interesting.
There are a number of different theories surrounding the reasons why a president issues a constitutional signing statement. One theory is you make the challenges to any infraction in any bill in case the issue lands in the courts--the president can point to a consistent set of challenges refusing enforcement, as happened with the legislative veto in the 1983 Chadha decision. A second theory suggests that they are used in an effort to influence judicial decisionmaking, which was behind many of the bills in the last couple of years attempting to limit the use of the signing statement. A third theory suggests that they are used to influence bureaucratic decisionmaking. It seems that that administration may be abandoning that first theory in the belief that these issues are not likely to end up before the courts, so why consistently draw attention to the constitutional signing statement by constantly repeating yourself with identical challenges?
They may also be hoping that new strategy, coupled with the numerous obstacles they have raised to track the use of the signing statement, will simply cause the issue to disappear as the public turns their attention elsewhere. Maybe. But they may be behaving as Cooper believed--turning to a different device that is harder to track. In the article, Jack Goldsmith, who worked in the OLC in the Bush II administration, notes that turning to the OLC opinion has advantages over the signing statement in that OLC opinions "are often secret," leading to "somewhat less accountability." Thus the only way you would know whether or not a challenge was made would be to try to monitor the behavior of those who work for the president, an incredibly daunting task that even the Congress has trouble doing.
It is ironic--this behavior is in direct relation to the abuse of the signing statement by President Bush II. His actions, which drew such high profile scrutiny of the signing statement did not lead to the disappearance of the device, but instead lead to driving it underground, leaving less accountability and scrutiny to a device that was already hard to track to begin with.
Be careful what you ask for, I guess.
